2017 (5) TMI 1489 - SC - Indian Laws

Suit filing restoration of the land - Held that - In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the bought in lands. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of bought in lands being contingent on the compliance of the essential pre-requisites therefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the bought in land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur. In the facts and circumstances of the case, in our estimate, the respondent No1/plaintiff is not entitled to the preference as contemplated therein for assignment of the bought in land. The High Court having failed to examine the issues in the perspectives, as mandated by RSO 45(4), the impugned judgment and order cannot be sustained and is, therefore set aside.

Issues Involved:
1. Validity of the assignment of the suit property.
2. Compliance with Revenue Standing Order (RSO) 45(4).
3. Entitlement of the respondent to preference in reassignment of the property.
4. Legal implications of the delay in challenging the assignment and offering to pay arrears.
5. Procedural lapses by revenue authorities in the assignment process.

Detailed Analysis:

1. Validity of the Assignment of the Suit Property:
The appellants were aggrieved by the High Court's judgment directing them to restore the property to the respondent within two months, reversing the First Appellate Court's decision which had dismissed the suit. The High Court found fault with the revenue authorities for assigning the land without notice to the original owner or his heirs and for leasing it to third parties.

2. Compliance with Revenue Standing Order (RSO) 45(4):
RSO 45(4) mandates that in the assignment of "bought-in" lands, preference should be given to the original owners or their heirs provided they were not willful defaulters, the default was due to circumstances beyond their control, and the assignment was otherwise unobjectionable. The High Court ruled that the failure to issue notice to the original owner before converting the land violated principles of natural justice.

3. Entitlement of the Respondent to Preference in Reassignment of the Property:
The respondent claimed entitlement to preference under RSO 45(4) for reassignment of the land, arguing that the assignment to third parties was made without notice to him. The Supreme Court emphasized that the respondent needed to prove that the original owner was not a willful defaulter, the default was due to uncontrollable circumstances, and the assignment was unobjectionable. The respondent failed to establish these conditions.

4. Legal Implications of the Delay in Challenging the Assignment and Offering to Pay Arrears:
The respondent did not challenge the government's taking over of the land in 1935 for non-payment of land tax until filing the suit in 2005. The Supreme Court noted that the respondent's delayed offer to pay arrears and the long gap in challenging the assignment weakened his claim. The court held that the respondent's inactivity and delay demonstrated a willful default, disqualifying him from preference under RSO 45(4).

5. Procedural Lapses by Revenue Authorities in the Assignment Process:
The High Court found procedural lapses by the revenue authorities in not issuing notice before assigning the land to third parties and not holding a public auction. However, the Supreme Court clarified that these lapses were inconsequential given the respondent's failure to meet the essential preconditions for preference under RSO 45(4).

Conclusion:
The Supreme Court set aside the High Court's judgment, concluding that the respondent was not entitled to preference under RSO 45(4) due to failure to prove non-willful default, uncontrollable circumstances, and an unobjectionable assignment. The appeal was allowed, and no costs were ordered.

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